On
Appeal from the 133rd District Court Harris County, Texas
Trial Court Case No. 2015-64778

Panel
consists of Justices Jennings, Bland, and Brown.

MEMORANDUM OPINION

Terry
Jennings Justice

In
this interlocutory appeal, [1] appellants, Ghyasuddin Syed, M.D.
and Southeast Texas Institute of Pain Management, P.A.
("STIPM"), challenge the trial court's order
denying their motion to dismiss[2] the claims brought against them
by appellees, Phu Huu Nguyen, Pharm. D., PLLC, doing business
as Wellness Pharmacy ("Wellness Pharmacy"), and Phu
"Paul" Huu Nguyen, for slander, tortious
interference with existing and prospective business
relationships, and business disparagement. In their sole
issue, appellants contend that the trial court erred in
denying their motion to dismiss, in which they asserted that
appellees' claims are health care liability
claims[3] and appellees did not serve them with an
expert report as required by the Texas Medical Liability Act
("TMLA").[4]

We
affirm.

Background

In
their petition, appellees allege that Nguyen, a licensed
pharmacist, owns Wellness Pharmacy, a licensed pharmacy that
from 2007 until March 2014 "was a tenant of the Baytown
Primary Medical Tower" (the "Medical Tower")
in Baytown, Texas. In 2009, Dr. Syed, who owns and operates
STIPM, another tenant in the Medical Tower, purchased the
Medical Tower and became Wellness Pharmacy's landlord.
After purchasing the Medical Tower, Syed increased Wellness
Pharmacy's rent to an "above market rate[]" and
imposed "burdensome overhead fees" on Wellness
Pharmacy.

In
March 2013, Nguyen became concerned about Wellness
Pharmacy's "viability" if it were to stay a
tenant in the Medical Tower. When he approached Dr. Syed to
express "his concerns about the increasing rents, the
disproportional overhead fees to maintain the building's
common areas, the dwindling number of physicians located in
the [Medical Tower] and the drastic decrease in the number
of" Wellness Pharmacy customers because of the
"departures of physicians and their practices [from the
Medical Tower], " Nguyen was "met with
retaliation." And Syed told Nguyen, "If [Wellness
Pharmacy] move[s], I will no longer allow my patients to fill
their prescriptions" there. (Internal quotations
omitted.)

In
March 2014, Wellness Pharmacy left the Medical Tower and
moved to another location in Baytown, Texas.[5] Wellness Pharmacy
then began to experience a decrease in the number of
customers, particularly those persons "who were under
Dr. Syed's medical care." For instance, before
Wellness Pharmacy left the Medical Tower, Syed's patients
"routinely filled their prescriptions at Wellness
[Pharmacy], " and from January 1, 2013 to December 31,
2013, Wellness Pharmacy filled 10, 570 prescriptions written
by Syed for his patients. After its relocation, however, from
January 1, 2014 to December 31, 2014, Wellness Pharmacy
filled only 6, 094 prescriptions written by Syed for his
patients. And from January 1, 2015 to September 24, 2015,
Wellness Pharmacy filled only 1, 629 prescriptions written by
Syed for his patients.

Appellees
further allege that after Wellness Pharmacy's relocation
away from the Medical Tower, Dr. Syed began
"intentionally engag[ing] in a pattern of conduct
calculated to force [appellees] to close [the pharmacy's]
doors." More specifically, Syed "intentionally and
maliciously [sought to] divert[] business away from Wellness
[Pharmacy] to other pharmacies, including a [new] pharmacy
located in [the Medical Tower]." And he falsely told his
patients, who had been Wellness Pharmacy customers, that
Nguyen was "engaging in illegal conduct, " Nguyen
"was in a lot of trouble, " and Wellness Pharmacy
"w[ould not] be around much longer." (Internal
quotations omitted.)

According
to appellees, Wellness Pharmacy customers have told them that
"Dr. Syed [is] forcing [them] to use" the new
pharmacy in the Medical Tower and "intimidat[ing]"
them into no longer filling their prescriptions with Wellness
Pharmacy. (Internal quotations omitted.) And Syed told some
Wellness Pharmacy customers that he will no longer
"see" them if they continue to use Wellness
Pharmacy and "someone will be watching where" their
prescriptions are being filled. (Internal quotations
omitted.)

In
regard to their claim of slander, appellees allege that
appellants have "defamed Nguyen by accusing [him],
" the "lead licensed pharmacist" and owner of
Wellness Pharmacy, of "engaging in illegal conduct"
and being "in a lot of trouble." Appellants have
"published" false statements "imputing
criminal misconduct on . . . Wellness [Pharmacy]" and
Nguyen, thereby injuring appellees' relationships with
their customers. And the false statements made by appellants,
"without legal justification, " were "intended
to, and in fact did, humiliate, disgrace, degrade, and
impeach Nguyen's reputation, integrity, and virtue"
and were defamatory per se.

In
regard to their claims of tortious interference with existing
and prospective business relationships, appellees allege that
appellants have "intentionally and maliciously
interfered with existing business relationships between
Wellness [Pharmacy] and its [customers] as well as [its]
prospective relationships [with new customers]."
"As a direct and proximate result of [appellants']
publication of defamatory statements" and their actions
seeking to prohibit Wellness Pharmacy customers "from
[continuing to] fill[] their prescriptions" at the
pharmacy, appellees have "endured shame, embarrassment,
humiliation, mental pain, and anguish." And they have,
and will in the future, suffer injury to their business,
reputation, and "standing in the community."

In
regard to their claim of business disparagement, appellees
allege that appellants, "despite knowledge of the truth,
" have "made malicious and reckless statements
about [appellees] in bad faith by publishing false and
disparaging information." Appellants communicated these
statements "knowing [that] they were false" and/or
with a "reckless disregard for the truth." They
made them with "ill-will, " "intending to
interfere with [appellees'] relationships" with
Wellness Pharmacy customers and appellees' "economic
interests in those relationships." Appellants have
"played a substantial part in" causing Wellness
Pharmacy customers to "ceas[e]" "deal[ing]
with [the pharmacy]." And appellants have
"preclude[ed]" customers "from seeking
pharmaceutical services and counseling at Wellness
[Pharmacy]." As a result, appellees have suffered
damages, including lost profits and lost dealings.

Appellants
answered, generally denying appellees' allegations and
asserting various affirmative defenses. Nine months later,
appellants moved to dismiss appellees' claims against
them for failure to serve appellants with an expert report as
required by the TMLA.[6] Appellants asserted that appellees'
claims against them for slander, tortious interference with
existing and prospective business relationships, and business
disparagement are "health care liability
claims"[7]governed by the TMLA, and as such,
appellees were required to "serve an expert report upon
[appellants] within 120-days of [appellants] filing an
[a]nswer."[8]According to appellants, appellees'
"entire petition is replete with references to medical
standards of care, patient-physician and/or
patient[-]pharmacy relationships, and damages related to
conversations which contemplate medical standards and
practices related to prescribing authority." "There
is simply no construction of [appellees'] claims that
could possibly fall outside of" the TMLA. Because
appellees were required to serve an expert report in the
instant case and did not do so, their claims against
appellants must be dismissed.[9]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In
response to appellants&#39; motion to dismiss, appellees
asserted that their claims for slander, tortious interference
with existing and prospective business relationships, and
business disparagement are not health care liability
claims[10]governed by the TMLA. Instead,
appellees' claims arise from appellants' intentional
and "calculated" conduct intended to
"disparage . . . Nguyen as a pharmacist, "
"undermine Wellness Pharmacy, " and "destroy
[appellees'] business." More specifically, appellees
asserted that appellants "slandered [appellees']
name[s] and reputation[s] to dozens of" their customers
"and others" by claiming that appellees were
"conducting illegal or untoward activities";
"intimidated and threatened" appellees'
customers; and "sent prescription requests to other
...

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